Feasting Judicial Convergence: Reconciling Legal Perspectives through the Potlatch Complex

• Author: Mark Ebert
• Position: Is currently completing an LLM at the University of Saskatchewan
• Pages: 21-35

APPEAL VoLuME 18

n

21

ARTICLE

FEASTING JUDICIAL CONVERGENCE:

RECONCILING LEGAL PERSPECTIVES

THROUGH THE POTLATCH COMPLEX

By Mark Ebert*

CITED: (2013) 18 Appeal 21-35

INTRODUCTION

e following article is an initial formulation attempting to illustrate a potential trans-

systemic approach to Aboriginal rights based on an equitable balance and convergence

of the perspectives, legal systems, and traditions of the numerous Aboriginal peoples

in Canada and t he Eurocentric common law perspective, system, and trad ition.1 e

inspiration for both this a rticle and the larger project is drawn from John Borrows’

challenge to create a Ca nadian law that is truly ind igenous in its origins and application

by acknowledging t he traditional and contemporary place of Ab original law among (and

not subsumed to) Canada’s legal traditions.2  is article will explore the convergence

of the practice or institution commonly known to outsiders as ‘potlatching’ and

common law judicial decision-making in Aborigina l rights claims. Again, this is an

initial formulation that I hope, similar to Borrows, represents an invitation for those

interested and more knowledgea ble in this topic to join.3 I begin with an overview of the

potlatch system4 among some coastal British Columbia First Nations peoples, paying

particula r attention to its role in decision-making a nd its role within the wider cultural

meshwork in which Eurocentric boxes like politics, economics, and law are intertwined

and interwoven in the lives a nd interactions of people. is overview will then lead into

a discussion of convergence and my edgling proposal rega rding the coastal potlatch

system and common law judicia l decision-making.

Before continuing, some qualications are in order to ensure clarity. First, by suggesting

the convergence of the potlatch system and common law judicial decision-making, I am

not equating the former institution with the court of t he common law. While some have

made this para llel, as will be noted below, I focus on the potlatch system as a signicant

historic and contemporary leg al and political arena for ma ny coastal First Nations peoples.

* Mark Ebert is currently co mpleting an LLM at the University of S askatchewan. He would like

to thank the patience and insights o f Alan Hanna in particular, as well as the Appeal editoria l

committee and of the ex ternal reviewer, Val Napoleon, for their co mments. Thanks also to

the support and insight s of Sákéj Henderson, to John Kle efeld for his comments on an earlier

draft, and also to his Nor thwest Coast colleagues Keith Carlso n, Bruce Miller, Jay Miller, Charles

Menzies, and Richard Daly. Than ks also extended to Tim Ing old, Andie Palmer, the late Bob

Williamson, and everyon e else who has helped and inspired hi m along the way.

1 This article is one facet of a larger research p roject aimed at formulating a pot ential trans-

systemic legal fram ework for Aboriginal rights.

2 Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 11, 15, 21

[Borrows, Indigenous Constitution].

3 Ibid at 10.

4 I will explain my reasons behind using “potlatch sys tem” below.